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Statement by Gabriela Knaul
SPECIAL RAPPORTEUR ON THE INDEPENDENCE OF
JUDGES AND LAWYERS
Expert consultation on human rights considerations relating to the
administration of justice through military tribunals and role of the
integral judicial system in combating human rights violations
24 November 2014
Geneva
Madame Chair,
Distinguished Delegates,
Ladies and Gentlemen,
It is with great pleasure that I address you today at the occasion of this expert consultation. Allow me
first to thank the organizers of the event, the Rule of Law and Democracy section of OHCHR, and the
sponsor of the Human Rights Council’s resolution on the integrity of the judiciary, the Russian
Federation.
As many of you may know, last year I focused my thematic report to the General Assembly on the
issue of the administration of justice through military tribunals.1 I will present here some of the views
I developed in my report.
Ladies and Gentlemen,
The concept of the independence of the judiciary is derived from the basic principles that substantiate
the rule of law, in particular the principle of the separation of powers, which constitutes the
cornerstone of an independent and impartial justice system. In its general comment No. 32, the
Human Rights Committee considered that the notion of a competent, independent and impartial
tribunal established by law set out in article 14, paragraph 1, of the International Covenant on Civil
and Political Rights designates a body, regardless of its denomination, that is established by law, is
independent of the executive and legislative branches of government or enjoys in specific cases
judicial independence in deciding legal matters in proceedings that are judicial in nature. The
Committee underscored that the requirement of competence, independence and impartiality of a
tribunal is an absolute right that is not subject to any exception.
The independence of military tribunals must therefore be legally guaranteed at the highest possible
level. Principle 1 of the draft principles governing the administration of justice through military
tribunals stipulates that military tribunals, when they exist, may be established only by the
constitution or the law, respecting the principle of the separation of powers. Even when guaranteed in
the constitution, the independence of the judiciary must also be ensured at the legislative level.
In a number of countries, the constitution contains provisions concerning military tribunals. The
content of those provisions, however, is heterogeneous. Some provisions simply defer the
establishment and functioning of military tribunals to the ordinary law. Other provisions are more
specific, seeking to regulate the jurisdictional powers of military tribunals, as well as their
composition and independence.
Distinguished Delegates,
The principle of the separation of powers requires that military tribunals be institutionally separate
from the executive and the legislative branches of power so as to avoid any interference, including by
the military, in the administration of justice. In this regard, principle 13 of the draft principles
governing the administration of justice through military tribunals states that military judges should
have a status guaranteeing their independence and impartiality, in particular in respect of the military
hierarchy. In the commentary to this principle, it is noted that the statutory independence of military
judges vis-à-vis the military hierarchy must be strictly protected, avoiding any direct or indirect
subordination, whether in the organization and operation of the system of justice itself or in terms of
career development for military judges.
As regards the modalities for the selection and appointment of military judges, these vary from one
country to another. In some countries, military judges are selected from a list of qualified candidates
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released from military service and appointed by a judicial council or the ordinary courts. In other
countries, they are selected through a competitive examination. In some cases, military judges are
selected and appointed by the executive branch. State practice is also diverse regarding the tenure of
military judges. In some countries, such judges are appointed for a limited period of time.
In its general comment No. 32, the Human Rights Committee has stated that the requirement of
independence refers, in particular, to the procedure and qualifications for the appointment of judges,
and guarantees concerning their security of tenure, the conditions governing promotion, transfer,
suspension and cessation of their functions, and the actual independence of the judiciary from political
interference by the executive branch and legislature.
International and regional judicial bodies have ruled in a large number of cases on military tribunals,
thereby generating jurisprudence on the compliance of such tribunals with the necessary requirements
of independence and impartiality.
In Martin v. the United Kingdom, the European Court of Human Rights held that in order to establish
whether a tribunal can be considered independent, regard must be had, inter alia, to the manner of
appointment of its members and their term of office, to the existence of guarantees against outside
pressures and to the question of whether the body presents an appearance of independence. In that
case, the Court concluded that while the participation of civilians as ordinary members of the court
martial may have contributed somewhat to its independence, they did not have sufficient influence
over the proceedings as a whole, including over the military members of the court martial, to satisfy
the independence and impartiality requirements of article 6 of the European Convention on Human
Rights.
In this judgement, the Court makes reference to Findlay v. the United Kingdom, with respect to which
the Court considered that there were fundamental flaws in the court-martial system in the United
Kingdom of Great Britain and Northern Ireland because of the role of the convening military officer.
Depending on their role and function, convening officers can have a considerable impact on the
independence and impartiality of military tribunals, for example in cases where the convening
authority has the power to dissolve a tribunal or otherwise influence the outcome of a trial. The role
and functions of convening officers, and safeguards against any such interference, must be clearly
defined by legislation so that, on the one hand, convening officers can act independently from external
pressure and, on the other hand, they are prevented from acting in ways that might hinder the
independent and impartial administration of justice.
In Palamara Iribarne v. Chile, the Inter-American Court of Human Rights held that that the organic
structure and composition of military tribunals in Chile implies that they are made up of active-duty
military members who are hierarchically subordinate to higher-ranked officers through the chain of
command, that their designation does not depend on their professional skills and qualifications to
exercise judicial functions, that they do not have sufficient guarantees that they will not be removed
and that they have not received the legal education required to sit as judges or serve as prosecutors. As
a result the courts lacked independence and impartiality.
In Castillo Petruzzi v. Peru, the Court noted that the fact that members of the Supreme Court of
Military Justice, the highest body in the military judiciary in Peru, were appointed by the minister of
the pertinent sector was enough to call the independence of the military judges into serious question.
Ladies and Gentlemen,
When it comes to the impartiality of the judge, two aspects have to be considered. Firstly, judges
should perform their judicial duties without bias or prejudice and should not harbour preconceptions
about the particular case before them, nor act in ways that improperly promote the interests of one of
the parties to the detriment of the other.
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Secondly, judges must appear to a reasonable observer to be impartial, and act in such a way as to
maintain and enhance the confidence of the public, the legal profession and litigants in the
impartiality of the judge and of the judiciary.
In Ergin v. Turkey, in which a newspaper editor was tried by a military tribunal for inciting the
evasion of military service, the European Court of Human Rights held that situations in which a
military tribunal has jurisdiction to try a civilian for acts against the armed forces may give rise to
reasonable doubts about such a court’s impartiality. The Court considered that a judicial system in
which a military tribunal is empowered to try a person who is not a member of the armed forces may
easily be perceived as reducing to nothing the distance that should exist between the court and the
parties to criminal proceedings, even if there are sufficient safeguards to guarantee that court’s
independence.
Madame Chair,
Military tribunals, when they exist, must be an integral part of the general justice system and
administer justice in a manner that is fully compliant with international human rights standards,
including by respecting the right to a fair trial and the due process guarantees set out, inter alia, in
articles 9 and 14 of the International Covenant on Civil and Political Rights.
In summary, my recommendations to strengthen the independence and impartiality of military
tribunals are the following:

The independence of military tribunals and their inclusion within the general administration
of justice system of the State must be legally guaranteed at the highest possible level.

Domestic legislation should include specific guarantees to protect the statutory independence
of military judges vis-à-vis the executive branch and the military hierarchy and to enhance the
confidence of the public, the legal profession and litigants in the impartiality of the judge and
of the judiciary.

The status of military judges, including their security of tenure, adequate remuneration,
conditions of service, pensions and age of retirement, should be determined by law. In
particular, military judges should have guaranteed tenure until a mandatory retirement age or
the expiry of their term of office, where such exist. Also, they should be dismissed only on
serious grounds of misconduct or incompetence, in accordance with fair procedures set out in
the law.

The role and functions of convening officers must be clearly defined by legislation so that
they can, on the one hand, act independently from external pressure and, on the other hand, be
prevented from acting in ways that might hinder the independent and impartial administration
of justice.

Domestic law should identify objective criteria for the selection of military judges, based on
their integrity, ability, qualifications and training.
Let me conclude by reiterating my endorsement of the draft principles governing the administration of
justice through military tribunals (the so-called Decaux principles). I encourage UN member States to
promptly consider adopting these principles.
I thank you for your attention
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